Government Seeks Return of Improperly Classified Document Given to ACLU

NEW YORK – In response to an American Civil Liberties Union Freedom of Information Act request, the Defense Department disclosed to the ACLU a document that contains criteria for holding detainees at the Bagram detention center in Afghanistan. Now, the government contends the document is properly classified and is asking a federal court to order its return.

The ACLU says the document should never have been classified and should be made public under the Freedom of Information Act. It contains the criteria for labeling detainees an "enduring security threat," which results in prolonged and possibly indefinite detention.

"The U.S. military should not be detaining people indefinitely, based on secret criteria, in a war with no foreseeable end," said Hina Shamsi, director of the ACLU's National Security Project. "Having seen the enduring security threat criteria, we can say without a doubt that nothing about them is properly classifiable or could pose any threat to national security if disclosed. People may disagree whether the criteria are legally valid, and that's all the more reason they should be publicly debated. While we have concerns about the criteria themselves, there is nothing about them that would be a surprise to anyone who has followed the U.S. government's positions on detention and terrorism prosecution in the last ten years."

The government had withheld the detention criteria document from the ACLU even as it disclosed other detention-related documents in response to the ACLU's FOIA request. When the ACLU realized that the document was received as part of a May 2011 document production, it promptly notified the government and requested that the document be immediately declassified, but the government refused.

"The government should never have classified this document in the first place, and it is simply indefensible that it continues to seek suppression of the document now," said Shamsi.

The ACLU's FOIA request on the prison at Bagram was made in April 2009, when there were approximately 600 people being held there without a meaningful process to challenge their detention. That number has now nearly tripled, and Bagram detainees still do not have access to a court or independent and impartial tribunal to determine the legality of their detention.

Under policies issued in 2009, a military review board decides whether Bagram detainees meet detention criteria established by the Obama administration, including a recommendation of whether the enduring security threat criteria are met. Bagram detainees who are found to be an enduring security threat may be kept in U.S. custody, even after other detention operations are transferred to Afghan authorities.

The other attorneys on the case are Jonathan Manes of the ACLU and Art Eisenberg and Chris Dunn of the New York Civil Liberties Union.